The main shortcoming of appellees’ papers is that they do not address the concerns of an appellate court, which are not the same as those of the district courts which have been inundated with these file-sharing lawsuits. This case raises many matters of first impression at the appellate level in general, and in this Court in particular. The district court precedents are not controlling, and there are many well-reasoned cases whose holdings directly contradict those cited by the appellees.

The fact remains that of these numerous ex parte (and litigated) applications, there is little appellate guidance (and apparently none from this Court) as to how this unprecedented flood of copyright litigation should be handled by the district courts. In trying to interpret statutes enacted in the pre-internet age, district courts are essentially improvising in many respects. Given the technical issues and the significant imbalance in the resources between the RIAA and these individual defendants, there needs to be such guidance.

It further argues:

The tensions and conflicts between copyright law and the inevitable and socially beneficial advancement of computer technology and the internet raise difficult problems of law and public policy. But the proper place for the resolution of these conflicts is Congress, where the interested parties can present their arguments, not ex parte proceedings and default judgments in the federal district courts. Suing thousands of people who seldom have lawyers or the ability to defend themselves, and extorting settlements, is not the way to resolve it either, and it is seriously detrimental to the sound development of copyright law.

Moreover, the methods and technology used by the RIAA are highly questionable. Recently, some defendants have retained their own expert witness to challenge the RIAA’s expert, and that witness’s findings point out serious flaws in the process. [footnote] See the report of Professor Yongdae Kim of the Department of Computer Science of the University of Minnesota, submitted in the Thomas case, available at http://recordingindustryvspeople. blogspot.com/2009_03_01_archive.html#1082514775121526971 (accessed March 29, 2009)[end of footnote] Moreover, even apart from battles of experts, when a technology is so flawed that it results in suits against homeless and dead people, or people without computers, or even a takedown notice directed to a laser printer, something is seriously wrong. The RIAA has frequently sued admittedly innocent persons and is quite cavalier about the burden they impose on the legal process and the federal judiciary, and the effects of such frivolous suits on their victims. Under such circumstances, a blanket rule automatically allowing the invasion of First Amendment rights in these RIAA cases would be seriously detrimental to the rights of Doe 3 and to the public interest. All of these issues justify the granting of a stay so that they can be thoroughly presented to this Court.

[Ed. note. The more I see of Richard A. Altman, the author of this reply memorandum, the more I think he is one of the greatest lawyers I have ever known. He represents all that is good and humane and civilized about the practice of law, and is a true credit to the legal profession. To you law students and young lawyers out there, take a look at the briefs and other legal documents of Richard A. Altman in such cases as Lava v. Amurao, Lava v. Amurao II, Arista v. Does 1-16, Interscope v. Kimmel, and UMG v. Lindor; this is what lawyering is all about. I am proud to be able to call him a friend, and to be on the same side as he is in this bitter struggle. -R.B.]

Sunday, March 29, 2009

According to a report I just read in Mashable, Pirate Bay is coming to Facebook. Writer Ben Parr says that The Pirate Bay site now includes links under torrents to 'Share on Facebook'. Once posted to a profile, the Facebook member's friends can click the link on Facebook to begin the download right away, provided he or she already has a torrenting client installed. I just hope people do not use this feature to download copyrighted materials which are not authorized to be downloaded, or at least not materials copyrighted to litigation-happy RIAA Big 4 record labels. No doubt, if their song files were downloaded through this method, the record companies would sit back for awhile, derive profit from the promotional excitement generated for their dying industry, and then -- armed with Facebook's data -- sue the pants off all the hapless Facebook users who fell for it.

Friday, March 27, 2009

Thought I would share with my readers the wise and prophetic testimony of music legend Roger McGuinn of The Byrds, in the statement he was called upon to make to the Senate Judiciary Committee on July 11, 2000:

Roger McGuinn Songwriter\Musician Formerly with The Byrds on “The Future of Digital Music: Is There an Upside to Downloading?” before the U.S. Senate Judiciary Committee July 11, 2000

Hello, my name is Roger McGuinn. My experience in the music businessbegan in 1960 with my recording of “Tonight In Person” on RCA Records.I played guitar and banjo for the folk group the “Limeliters.” Isubsequently recorded two albums with the folk group the “ChadMitchell Trio.” I toured and recorded with Bobby Darin and was themusical director of Judy Collins’ third album. In each of thosesituations I was not a royalty artist, but a musician for hire.

My first position as a royalty artist came in 1964 when I signed arecording contract with Columbia Records as the leader of thefolk-rock band the “Byrds.” During my tenure with the Byrds I recordedover fifteen albums. In most cases a modest advance against royaltieswas all the money I received for my participation in these recordingprojects.......

...........

In 1994 I began making recordings of traditional folk songs that I’d learned as a young folk singer. I was concerned that these wonderful songs would be lost. The commercial music business hasn’t promotedtraditional music for many years. These recording were all available for free download on my website http://www.mcguinn.com on the Internet.

In 1998 an employee of MP3.com heard the folk recordings that I’d madeavailable at http://www.mcguinn.com and invited me to place them onMP3.com http://www.mp3.com. They offered an unheard of, non-exclusiverecording contract with a royalty rate of 50% of the gross sales. Iwas delighted by this youthful and uncommonly fair approach to therecording industry. MP3.com not only allowed me to place these songson their server, but also offered to make CDs of these songs for sale.They absorbed all the packaging and distribution costs. Not only isMP3.com an on-line record distributor, it is also becoming the newradio of the 21st century!

So far I have made thousands of dollars from the sale of these folkrecordings on MP3.com, and I feel privileged to be able to use MP3sand the Internet as a vehicle for my artistic expression. MP3.com hasoffered me more artistic freedom than any of my previous relationshipswith mainstream recording companies. I think this avenue of digitalmusic delivery is of great value to young artists, because it’s sodifficult for bands to acquire a recording contract.

Came across this interesting general article on the website of the Journal of the DuPage County Bar Association:

The RIAA Versus the People: A File-Sharing Witch Hunt

By Heather Neaveill

For the past five years, the Recording Industry Association of America (RIAA) has unleashed a barrage of “John Doe” lawsuits aiming at individuals who illegally file-share or download music and infringe on the recording industry’s copyrighted works. But is their tactic fair? Many defendants say ‘no.’ The RIAA’s targets are not commercial entities but private, ordinary individuals. Even some federal judges have grown tired of the RIAA’s modus operandi. The Hon. Nancy Gertner addressed counsel in open court that “counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers, to fully understand that, more than just how we serve them, but just to understand that the formalities of this are basically bankrupting people and it’s terribly critical that you stop it.” Now, this is not to condone illegal file-sharing, but the question does turn on whether there should still be an element of fairness when fighting illegal activity.

According to this new report in p2pnet, earlier reports that AT&T agreed to act as an RIAA enforcer are incorrect, and both AT&T have Comcast have refused to do so.

[Ed. note. What's the truth? Don't ask me. If you find out, let me know. Meanwhile we should try to let our ISP's know how we feel about them becoming enforcement cops for 4 of the most dastardly corporations on the face of the earth. -R.B.]

Wednesday, March 25, 2009

In SONY BMG Music Entertainment v. Cloud, a Philadelphia case, the Obama Justice Department has filed a similar brief defending the constitutionality of the RIAA's statutory damages theory that it is entitled to recover from $750 to $150,000 for a single MP3 file.

Like the Tenenbaum brief, this brief likewise ignores Parker v. Time Warner, Napster, UMG v. Lindor, and Atlantic v. Brennan, and the Georgetown and University of Texas Law Review Articles, all cited in the amicus curiae brief of the Free Software Foundation in Tenenbaum

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove